CALIFORNIA ATTORNEY'S FEES

Fee Clause Interpretation: Losing Party To An Oral Agreement To Foreclose On A Property Was Not Liable For Fees Under A Promissory Note

Losing Party Was Not A Signatory To The Note, And The Foreclosure Oral Agreement Was Separate From The Note.

               Kim v. Kim, Case No. B336809 (2d Dist., Div. 1 May 14, 2025) (unpublished) involved a fight between plaintiffs and defendants over an oral agreement to foreclose property, with plaintiffs paying $25,000 under that agreement but defendants claiming $420,000 was owed.  Plaintiffs lost the case, and defendants sought $280,700 under a contractual fees clause in a note between defendants and the note borrower.  The lower court denied the fee request.  The 2/1 DCA affirmed, determining that (1) plaintiffs were not signatories to the note, and (2) the foreclosure arrangement was separate from the note and not “related”/”connected” to the note. 

Fee Clause Interpretation: Where Pleadings And Testimony Showed That A Brochure With A Fees Clause Applied To Services Different Than The Ones In Dispute, Trial Judge’s Conclusions That The Two Transactions Were Not Integrated Supported A Denial Of Fees

The Pleadings And Trial Testimony Supported That Result.

               Plaintiff restoration company won a $452,422 jury verdict against defendant apartment owner for water restoration services, then moving to recover $260,215 in attorney’s fees based on a fees clause in a prior brochure involving different apartment turn services which were paid off by apartment owner.  The lower court found that the pleadings and trial testimony showed the transactions were not the same, so the integration principle contained in Civil Code section 1642 was not viable, denying fees to the restoration company.

               The appellate court affirmed in Prestige Construction and Renovation Services, Inc. v. Reliant Real Estate Management, Inc., Case No. D084506 (4^th Dist., Div. 1 Mar. 18, 2025) (unpublished).  The integration question was one of fact, with substantial evidence showing the brochure fees clause did not apply to the later water restoration services resulting in the jury verdict.  Because there was no agreement with a fees clause (R.W.L. Enterprises v. Oldcastle, Inc., 17 Cal.App.5^th 1019, 1022, 1028 (2017)), the fee denial was warranted. 

Fee Clause Interpretation, Reasonableness Of Fees: Fee Clause Stating Recovery For Third-Party Costs For Collection Encompassed Attorney’s Fees

Trial Court Properly Reduced $124,160 Fee Request To $64,750 To Prevailing Party Based On Partial Success, Under A Percentage Of Recovery And A Lodestar Analysis.

               Pulse Technology Consulting Group, Inc. v. Skowron & Bunning, LLP, Case No. C098036 (3d Dist. Feb. 11, 2025 partially published; fee discussion published) involved dueling actions about an information technology services agreement.  After a five-day bench trial, plaintiff won its contractual breach claim but was awarded lower-than-requested damages of $54,680 while defeating the defense’s counterclaims.  Plaintiff then moved for attorney’s fees under this contractual clause: “Client will be responsible for all third party costs incurred by PULSE to collect overdue invoices.”  Plaintiff/cross-defendant ultimately requested fees of $124,160, but the lower court only awarded $64,750, triggering an appeal by the defense.

               The Third District affirmed, publishing its discussion on the fee issue.  The defense argued that the contractual language did not encompass fees, but the appellate court disagreed even though giving de novo review to the fee entitlement issue.  It observed that third-party expenses, in a collection context, would encompass attorney’s fees, relying on the reasoning in the federal court decisions in Mastronardi International Limited v. SunSelect Produce (California), Inc. (E.D. Cal. Aug. 23, 2019, No. 1:18-cv-00737-AWI-JLT) 2019 U.S. Dist. LEXIS 143934; Oklahoma Fixture Co. v. ASK Computer Systems, Inc. (10th Cir. 1995) 45 F.3d 380 to support its conclusion.

               That shifted the analysis into whether the fee award was reasonable.  It was.  After reducing some claimed hours for partial success under the lodestar approach to arrive at a $64,750 figure, the interesting part of the decision is that the appellate court also affirmed the lower court’s determination of reasonableness through a “cross-check” under a percentage-of-recovery analysis:  plaintiff obtained 32% success on its contractual case based on damages ultimately awarded and 100% success on the counterclaims, such that a blended 66% success rate justified the ultimate award from plaintiff’s “ask”—an $82,000 figure even though the trial court used it as a check against the $64,750 lodestar figure, adopting the lower lodestar figure as the award.

Fee Clause Interpretation: 4/3 DCA Reverses Denial Of Fees To Defendant Because Trial Court Made No Finding Whether Defendant Was A Landlord And A Party To A Lease

Plaintiffs’ Lawsuit For Various Counts Relating To A One-Year Lease Did Arise Under Broad Language In The Fees Clause.

               In S&S Engineering and Construction v. Van Swae, Case No. G062352 (4^th Dist., Div. 3 Jan. 13, 2025) (unpublished), a lower court’s order denying a fees motion to a possible landlord under a one-year lease was reversed, because the broad “arising out of the agreement” language did encompass fraud and unjust enrichment claims.  (Xuereb v. Marcus & Millichap, Inc., 3 Cal.App.4^th 1338, 1343-1344 (1992); Lerner v. Ward, 13 Cal.App.4^th 155, 158-160 (1993).)  However, the matter had to be remanded to determine if the defendant, assertedly in a trustee capacity, truly was a landlord and a party to the lease—if so, fees needed to be awarded; and, if not, the fee motion needed to be denied.

Justice Motoike authored the opinion on appeal.

Appealability, Costs, Fee Clause Interpretation: Lower Court’s Grant Of Expert Fee Costs To Defendant And Denial Of Attorney’s Fees To Defendant Affirmed On Appeal

Lack Of Adequate Record Doomed Both Appeals, But They Also Failed On The Merits.

               In Paige v. Nolan, Case No. B322162 (2d Dist., Div. 5 Dec. 13, 2024) (unpublished), plaintiff refused a CCP § 998 offer in a legal malpractice case, with defendant attorney winning.  The lower court did award attorney some expert witness fees based on the 998 offer, but it denied attorney’s request for fees based on a narrow retainer agreement clause.  Both sides appealed, but the results held up on appeal. 

               Both sides had problems because they had no reporter’s transcripts to show what occurred at the costs/fees hearings.  That alone justified a denial of respective appeals.

               But, even if the merits were considered, there was enough evidence of record to support the expert witness fee award.  With respect to the fee denial request by attorney, the retainer agreement was narrowly focused on fee collection issues, not professional malpractice claims, such that the fee denial was proper. 

Fee Clause Interpretation, Poof!, Trade Secrets: Defendant Defeating Contractual Damages Claims Not Entitled To Fee Recovery Where Fees Clause Only Applied To Equitable/injunctive Relief Wins

Results Is That $533,086.19 Fee Award Went POOF! On Appeal.

                The next case is a continuation of a case we earlier posted on, Applied Medical Distribution Corp. v. Jarrells (2024) 100 Cal.App.5^th 556, discussed in our March 11, 2024 post.  There, plaintiff obtained preliminary and then later permanent injunctions against defendant in a trade secret misappropriation case, although losing damages recovery, under an agreement allowing fee recovery to a party obtaining equitable relief.  That exposed defendant to around $554,000 in fees and costs, although the appellate court did reverse some fee determinations so that a remand was available to the defendant—although the remand likely would not reduce the previous fees/costs award to plaintiff.  Before that appeal was decided, defendant went on the offensive and filed his own fee motion for recovering on the damage end of the claims.  The lower court agreed, awarding defendant $533,086.10 in fees under the contractual fees clause such that defendant likely perceived that the fee exposure was a wash.

               That perception can and was negated by an appellate court’s scrutiny of the breadth of the fees clause, which did occur to defendant’s chagrin in Applied Medical Distribution Corp. v. Jarrells, Case No. G062699 (4^th Dist., Div. 3 Nov. 22, 2024) (unpublished), also authored by Justice Gooding as she did with respect to the earlier published opinion.

               The substantive problem was the breadth of the contractual fees and the nature of defendant’s prevailing result in the case.  Plaintiff was the party which prevailed on the equitable, injunctive relief aspect of the case, not defendant.  The fees clause did not encompass recovery by a party defeating a damage claim such that the lower court’s attempt to do equity could not surmount the legal interpretation relating to the limited scope of the fees clause.  Defendant’s fee award was reversed as a matter of law because, even under Civil Code section 1717, plaintiff would not have been entitled to fees against defendant had it prevailed by just winning damages.

Fee Clause Interpretation: Tenant Winning Damages Under Municipal Code And Statutory Provisions Properly Awarded Fees Even Though Rental Agreement Precluded Fee Recovery On Contractual Claims

Statutory Entitlement To Fees Was Independent From Recovery Under A Contractual Fees Clause.

               In Dostie v. Marowitz, Case Nos. A168780 et al. (1^st Dist., Div. 2 Nov. 22, 22, 2024) (unpublished), plaintiff tenant won $60,000 in damages against defendant former landlord for failure to maintain the premises, gender discrimination, and emotional distress.  Defendant landlord defenses some contractual claims.  The rental agreement had this fees clause: “If, in the event of any dispute, a legal action becomes necessary regarding this rental agreement or the parties to this agreement, each party shall bear the cost of their own legal representation in any and all matters related to such legal action.”   The lower court awarded tenant $22,750 in fees under an Oakland tenant protection ordinance, the Unruh Act, and FEHA.  Landlord argued that the contractual fees clause prevented a fee award, but the appellate court found that the award was justified because municipal and state statutory entitlements were the bases for the fee award, not contractual bases (finding the clause did not reach non-contractual claims, but did explain why landlord did not seek fees for winning on contractual claims). 

Fee Clause Interpretation, Settlement: Settlement Agreement Language Only Allowed Enforcement Activities Associated With The Settlement

Other Non-Settlement Activities Were Improperly Awarded As Attorney’s Fees.

               Bodero & Associates, Inc. v. Gorman, Case No. A168856 (1^st Dist., Div. 5 Sept. 20, 2024) (unpublished) is a good example as to when four-corner contractual interpretation will govern a fee dispute, unfortunately requiring a limited remand.  Parties entered into a settlement agreement with standard terms, requiring payment of a monetary judgment if there was a breach of the settlement, requiring payment of potential fees and costs if there was a breach of the settlement, and otherwise requiring no fees and costs expended previously in the case being awarded to other side.  Plaintiff was not paid, obtained judgment for the specified amount and requested all attorney’s fees since the action was filed.  The lower court granted the fee request, but that led to a reversal.  The problem was that the fee award was not calibrated to the settlement language only relating to fees incurred to enforce the settlement agreement, not prior activities.  Reversed and remanded. 

Fee Clause Interpretation: Based On A Broad Fee Clause, The Lower Court Correctly Construed An Option Agreement And Awarded Over $1.371 Million In Fees

Shows How Fee Motions Can Be Mini-Trials On Interpretation Of Fee Clauses.

               In Preservation, Finance, Rehabilitation & Development, LP v. Associated Financial Corp., Case No. B325694 (2d Dist., Div. 4 Aug. 13, 2024) (unpublished), defendant won a bench trial in a complex loan transaction case, with the lower court awarding defendant prevailing party fees of $1,371,017 (out of a requested $1,414,748) under a fee clause contained in an options agreement.  The 2/4 DCA affirmed, agreeing with the trial judge that it was necessary to engage in contractual interpretation to see if the option agreement was in play.  It was, and operative broad fees clause was inclusive to cover the option dispute.

Fee Clause Interpretation, Section 1717: Prevailing Defendant’s Dismissal Of Cross-Complaint After Winning Did Not Give Rise To Fee Exposure

Santisas Rule Applied, With Dismissed Cross-Complaint Only Raising Contractual Claims.

               In Colaco v. Marcum LLP, Case No. B326252 (2d Dist., Div. 2 July 30, 2024) (unpublished), plaintiff sued his accounting firm for misrepresentation after losing money in some investments, with the defendant obtaining summary judgment and then voluntarily dismissing a cross-complaint containing indemnity and declaratory relief cross-claims.  Although the accounting firm’s engagement letters had broad fee clauses, the lower court denied plaintiff’s request to be awarded attorney’s fees under Civil Code section 1717.  The 2/2 DCA affirmed under the Santisas v. Goodin, 17 Cal.4^th 599, 602 (1998) rule applicable to voluntarily dismissed contract claims.  Plaintiff could not distance himself from admissions that he was suing “on the contract,” and he could not articulate persuasively how the dismissed cross-claims were tort claims falling outside of Santisas. 

Fee Clause Interpretation, Judgment Enforcement, Section 1717: $70,635 Attorney’s Fees Award Favorable To Nonsignatory To A Contract, Reversed As A Matter Of Law

Plaintiffs’ Claims Against Nonsignatory Did Not Seek To Enforce The Contract, With No Judgment Enforcement Fees Available To The Nonsignatory.

               Crooymans v. Foumberg, Case No. B325110 (2d Dist., Div. 3 June 18, 2024) (unpublished) is a stark reminder that a nonsignatory to a contract, more often than not, does not face fee exposure under a contractual fees clause when that litigant was not a party to the underlying contract.

               In this case, plaintiffs obtained a favorable arbitration award against their late-father’s tax planning attorney, with a separate $1.7 million fee component embedded in the award under an attorney engagement letter with a fees clause.  But the relevant part of the case is that plaintiffs sued defendant Foumberg, a nonsignatory to the attorney engagement agreement, because he did some estate planning transfers for the tax planning attorney and his wife, with plaintiff claiming he was a shill for the judgment creditor attorney.  Foumberg won on a demurrer on the merits (not at issue) and then moved for attorney’s fees under Civil Code section 1717 based on the engagement letter to which he was not party.  The lower court awarded him $70,635 in attorney’s fees, prompting an appeal.

               The 2/3 DCA panel reversed as a matter of law.  The primary flaw was that Foumberg, a nonsignatory to the attorney engagement letter with a fees clause, was not sued under that agreement—the “on the contract” requirement of section 1717 was not satisfied.  In fact, the merger doctrine applicable when a judgment is entered which extinguishes contractual rights all the more so dictated the conclusion that no contractual fee recovery was available:  this meant plaintiff could not recover fees against Foumberg, so he could not do so either.  (Chelios v. Kaye, 219 Cal.App.3d 75, 79-80 (1990), abrogated by statute in Code Civ. Proc., § 685.040 in some regards; GrayI CPB, LLC v. SCC Acquisitions, Inc., 233 Cal.App.4^th 882, 890 (2015).)  Plaintiffs argued that Foumberg had alter ego exposure, but this did not resonate for two reasons:  (1) plaintiffs attempted “reverse piercing” which is not generally allowed; and (2) plaintiffs were attempting recovery on a tort—not contract—claim which was not within the scope of the attorney engagement contractual fees clause, relying on the reasoning in Brown Bark III, L.P. v. Haver, 219 Cal.App.4^th 809, 828-829 (2013).  Finally, because plaintiffs argued Foumberg was accountable for fees as an alter ego, the appellate panel found that plaintiffs had not sued the attorney under traditional alter ego analysis, had sought unconventional reverse piercing, and had obtained a judgment against attorney which was based on tort rather than on a contract. 

Appealability, Estoppel, Fee Clause Interpretation: Prevailing Party In Appellate Writ Proceeding Was Entitled To Small Routine Costs, But Not Attorney’s Fees

Appeal Costs Order Was Appealable, But There Was No Fee Entitlement Basis—Estoppel Argument Was Rejected.

            In Kaur v. Pabla, Case No. F086273 (5^th Dist. May 14, 2024) (unpublished), plaintiffs obtained an appellate writ mandate order and moved for appellate costs, both routine expenses and attorney’s fees.  In the end, the routine cost of $775 for the appellate filing fee was granted, but the request for attorney’s fees of $31,680 was denied by both the trial and appellate courts.

            The main problem for plaintiffs was that they could not show any fee entitlement basis.  They argued that prayer for fees by the other side created an estoppel, but the majority approach on this issue was against them, citing Blickman Turkus, 162 Cal.App.4^th at 898.   Because the defendants were not parties to the documents with fee clauses (some of which were forged or non-existent), there was no fee entitlement for purposes of allowing plaintiffs to recover fees.

            The interesting aspect of this case was on appealability.  The issue is whether an appellate costs order is appealable or only interlocutory in nature.  In a scholarly discussion noting a split in authority, the Fifth District sided with the majority view that the order was appealable. 

Construction, Fee Clause Interpretation: Because Surety’s 2010 Contract Had A Fees Clause, It Was Erroneous To Deny Fees Based On A 2015 Contract Having No Such Clause

2015 Contract Necessarily Referenced The 2010 Contract, So Remand Was Necessary To Determine If Fee Allocation Was Necessary And The Reasonableness Of Surety’s Request.

               In FEI Enterprises, Inc. v. Massachusetts Bay Ins. Co., Case No. B329502 (2d Dist., Div. 2 Apr. 4, 2024) (unpublished), surety won a summary judgment against its general contractor for surety’s declining to contribute to a settlement in a lawsuit related to the surety bond.  Surety moved for $413,556.51 in attorney’s fees, but the lower court denied it on the belief the request was founded on a 2015 contract having no fees clause.  The 2/2 DCA reversed as a matter of law because the 2015 contract did refer to the 2010 contract with the fees clause, necessarily meaning the fees clause was in operation.  On remand, the fee hearing would focus on whether to allocate fees for the surety enforcing the 2010 contract on its implied-in-fact contract claim and on how to fix the amount of reasonable fees to be awarded.  The appellate court itself refused to fix fees because “these are tasks best presented to the trial court in the first instance.” (Slip Op. at p. 17.)

Allocation, Fee Clause Interpretation, Section 1717: Intervening Insurer Not Responsible For Fees To Prevailing Party, While Litigant Losing Alter Ego Arguments Was Responsible For Fees

Lower Court Also Did Not Err By Awarding Insurer Rate Fees To A Prevailing Party, Apportioning Out Noncompensable Fees.

               Yee v. Weinberg, Case No. A163850 et al. (1^st Dist., Div. 4 Mar. 5, 2024) (unpublished) is a situation where a plaintiff landlord prevailed against defendant tenant, with landlord receiving some fees (but none against the intervening insurer eventually withdrawing from the case), but with landlord having to pay fees to defendants not proven to be alter egos.  Some of the winning defendants were awarded fees, but at lower rates charged by the insurance carrier and with some apportionment done by the lower court.

               All of the fee determinations were affirmed on appeal.  The insurer was not responsible for fees because (1) there was no contract or statute allowing fee entitlement to landlord, and (2) insurer’s dismissal of its intervention complaint was a contractual dismissal which invoked the Santisas fee bar.  The fee award to the alter ego defendants was no fluke because plaintiff failed to prove they were alter egos, which invoked Reynolds Metals as the fee entitlement basis.  Defendants complaining about the lower court’s reduction in fee requests, through cross-appeals, showed no abuse of discretion in allowing compensation only at the rates charged by the insurance carrier’s counsel and apportioning out fees which were not compensable.

Estoppel, Fee Clause Interpretation, Section 1717: Lower Court’s Denial Of Attorney’s Fees To Prevailing Plaintiffs In CC&R Flag Pole Placement Dispute Was An Abuse Of Discretion

Judicial Estoppel Applied And Plaintiffs Were The Unqualified Winners.

               In Rowan v. Hilliard, Case No. D081687 (4^th Dist., Div. 1 Feb. 29, 2024) (unpublished), plaintiffs prevailed against defendants/cross-complainants in a flag pole placement dispute under CC&Rs, which had a fees clause giving the lower court the authority (“shall have the authority”) to award reasonable attorney’s fees to the prevailing party.  The trial judge found that this clause was only discretionary even though plaintiffs prevailed.

               The 4/1 DCA reversed.  It initially determined that defendants were judicially estopped from denying the fee clause applied, because they previously convinced a judge to award fees after winning a summary judgment motion (a win reversed earlier by the appellate court).  Further, it was an abuse of discretion not to award fees because plaintiffs were the unqualified winners and Civil Code section 1717 applied so they were entitled to fees.

Fee Clause Interpretation, Prevailing Party, Section 1717: Lower Court Erroneously Denied Attorney’s Fees To Plaintiff Who Obtained A Majority Of What She Wanted In A Loan Agreement Case With A Fees Clause Only Covering A Judicial Foreclosure Case

Under Civil Code Section 1717, Lack of Recital Saying Contract Was Negotiated/Executed With Counsel Representation Kept The Clause From Applying Narrowly, With The Matter Remanded For Purposes Of Determining If Plaintiff Was The Prevailing Party For Fees Even Though Plaintiff Did Not Pursue Routine Costs Recovery.

            In Andrade v. Western Riverside Council of Governments, Case No. D080978 (4^th Dist., Div. 1 Feb. 20, 2024) (published), plaintiff filed a lawsuit against the Council and others claiming she had been fraudulently enrolled in a PACE energy program resulting in a lien and increased property tax assessments, pleading multiple contractual theories for rescission, restitution, damages, and declarations that the agreements were partially or wholly unenforceable.  After an investigation through a state department confirming contractor fraud, the Council voluntarily released its lien and reimbursed plaintiff for the increased property tax assessments.  Plaintiff obtained much of the relief she wanted through Council’s actions, but never obtained a declaration that the agreements were unenforceable.  The operative loan agreements between plaintiff and Council had a narrow fees clause applying only to a judicial foreclosure action prosecuted by Council, something which did not occur.  The lower court denied plaintiff’s attorney’s fees request, determining that the fees clauses did not apply because no judicial foreclosure action was pursued by Council.  (Plaintiff ultimately did not pursue a costs recovery.)

            Initially, the appellate court agreed that the action was a contract because it concerned whether the loan agreements were valid and enforceable, with plaintiff’s theory of invalidating the contracts being “on the contract” under Civil Code section 1717 and with dicta in Xuereb/Dintino decisions not altering that conclusion.  Second, although acknowledging that the fees clause was narrow and applied only to judicial foreclosure actions, the 4/1 DCA panel relied on section 1717(a) to conclude that the fee provision applies to the entire contract unless the parties expressly recite that the agreement was negotiated/executed by parties represented by counsel somewhere in the contract or fees clause—that recital was not present, and the appellate court deemed that this recital was necessary to prevent the agreement from being a “lopsided arrangement that section 1717 prohibits.”  Finally, given its prior conclusions, the appellate court remanded to have the lower court determine if plaintiff “prevailed” for fees under section 1717:  after all, even though she won a lot, she did not prevail across-the-board such that a pragmatic inquiry was necessary on remand.

BLOG OBSERVATION—This case suggests that in fee clauses, transactional attorneys need to include the negotiation/execution recital or be at risk that a narrow fee clause will not be enforced where the fee motion issues on based on the entire contract.  Huge drafting tip here.

Employment, Fee Clause Interpretation, Prevailing Party, Settlement, Special Fee Shifting Statutes: Denial Of Labor Code Section 1194 Attorney Fees To Plaintiffs Who Incurred Post-Settlement Fees After Employer Breached The Settlement Agreement Reversed

Because The Fees Provision In The Parties’ Settlement Agreement Did Not Address Fees Incurred Post-Settlement, Plaintiffs Were Entitled To Recovery Under Section 1194, But Only As To Fees Incurred In Conducting Discovery And Litigating To Trial, Not In Enforcing The Settlement Agreement.

            In Lorta v. Bishop, Case No. G062166 (4^th Dist., Div. 3 February 13, 2024) (unpublished), five employees, who had sued their employer for recovery of wages, filed a motion seeking attorney fees of $331,261.25 – based on a $265,009 lodestar and a 1.25 multiplier – after employer failed to comply with the parties’ stipulation for settlement.  Plaintiffs incurred the fees post-settlement by conducting discovery and preparing for trial, and by enforcing the settlement agreement, and claimed entitlement to the fees under Labor Code sections 1194 and 226, and Code Civ. Proc. section 1021.5.  Defendant argued that because there was no trial or determination by the trial court on the merits of Plaintiffs’ claims, Plaintiffs were not prevailing parties under sections 1194, 226, and 1021.5, and not entitled to statutory fees.  Defendant further argued that Plaintiffs had prevailed only in enforcing the settlement agreement, which amounted to a breach of contract claim, and the settlement agreement provided that each party would bear its own fees and costs.  The trial court agreed and denied Plaintiffs’ motion for fees.

            Plaintiffs appealed and obtained a reversal and remand as to fee recovery under section 1194 – a one-way fee-shifting statute that allows employees to recover fees in a successful action for minimum wage or overtime. 

            In an opinion authored by Justice Sanchez, the 4/3 DCA found that the settlement agreement was silent as to any fees incurred after the settlement agreement – thereby entitling Plaintiffs to post-settlement attorney fees under section 1194 insofar as those fees were not incurred to enforce the settlement agreement.  In reaching this conclusion, the panel determined that the settlement agreement had the same effect as a judgment as defined under Code Civ. Proc., § 577 and constituted a recovery in a civil action within the meaning of section 1194.

Fee Clause Interpretation: Easement Language Only Referencing “Costs And Expenses Of Defense” Arising From The Easement Properly Found Not To Encompass Attorney’s Fees

Failure To Reference Attorney’s Fees Was Fatal To Fee Recovery.

            Draftsmanship, draftsmanship, draftsmanship is the theme of the case we next post on, Smith v. Guillosson, Case No. B322717 (2d Dist., Div. 2 Jan. 30, 2024) (unpublished). 

            Plaintiff/cross-defendant prevailed on a patio and a walkway easement dispute where there were clauses indicating that the losing party adjacent neighbor “agrees to pay for any and all liability or damages including costs and expenses of defense” arising from use of the easements.  Prevailing party moved for attorney’s fees, with the lower court tentatively awarding $462,714 in fees (yes, you read that right) but then ultimately denying fees altogether because the easement language did not encompass attorney’s fees in a first-party situation.

            The 2/2 DCA affirmed.  Attorney’s fees and other expenses of litigation, whether termed as costs, disbursements, outlays, or something else, are mutually exclusive, such that costs do not include attorney’s fees.  The easement language did not expressly address attorney’s fees, with no contractual implication proper.  Fee denial affirmed.

Fee Clause Interpretation: No Attorney’s Fees Exposure In Court Action Because Operative Contractual Fees Clause Only Applied To Arbitration Activities

Choosing Litigation Over Arbitration Means The Party Did Decide To Forego Fees.

            Roberts v. Crandell, Case No. B320951 (2d Dist., Div. 3 Jan. 26, 2024) (unpublished) is yet another unpublished decision with reasoning which supports the view that a litigant choosing to litigate in court, rather than arbitration (where the contractual fee clause only encompasses arbitration), cannot recoup attorney’s fees as the prevailing party in a court case.

Family Law, Fee Clause Interpretation, Indemnity: Some Parts Affirmed, Some Parts Reversed And Remanded In Appeal Involving Community Or Separate Property Liability For Indemnification Obligations

Also, Fee/Costs Award Under Indemnity Agreement Only Recoverable Against Ex-Husband, A Signatory To The Agreement, But No Fee Exposure Under The Third-Party Indemnity Provision; Needs-Based Fees Paid To Both Spouses Are Separate Debts Of Husband For His Need-Based Fees And Community Debts For Fees To Both Spouses.

            Acting Presiding Justice Moore, in In re Marriage of Nakamoto and Hsu, Case No. B061363 (4^th Dist., Div. 3 Jan. 3, 2024) (unpublished), dealt with a written indemnity agreement between ex-husband and his siblings (with ex-wife not being a party to the agreement).  Former spouses believed that the siblings owed ex-husband roughly $3 million, which had been transmuted to community property, proceeding to a trial at which former spouses lost.  The lower court awarded siblings over $2.4 million in costs and fees against ex-husband separately, ex-wife separately, and community.

            On appeal, the 4/3 DCA panel agreed that only the community, not ex-wife separately, were liable for ex-husband’s indemnity obligations under Family Code section 910(a), because Family Code section 913(b) did not visit this obligation on her separately.  The lower court also erred in including attorney’s fees that siblings incurred in litigating against ex-husband as to ex-wife.  However, ex-husband was responsible for these fees under the indemnity fees clause, but not a third-party claims provision.  Finally, needs-based fees awarded to both former spouses by siblings under Family Code section 2030 were a separate obligation of ex-husband as well as a community obligation. 

Fee Clause Interpretation, Section 1717: Lower Court Erred In Denying Fees To A Parties’ Successor Under An Easement Settlement Agreement

Fees Clause Did Encompass The Parties And Their Successors.

            In Elusive 8307, LLC v. Canterman, Case No. B321096 (2d Dist., Div. 4 Jan. 3, 2024) (unpublished), prior owners of plaintiff's and defendant's adjacent properties entered into a settlement agreement granting an easement to plaintiff over a portion of defendant’s property.  Plaintiff lost an easement interpretation dispute with defendant, but defendant was denied attorney’s fees under an attorney’s fees provision in the settlement agreement.  The 2/4 DCA panel reversed.  Plaintiff did seek to interpret the easement settlement agreement so that its claims were founded “on the contract” under Civil Code section 1717.  Because both parties were successors-in-interest under the settlement agreement, that meant the fees clause was binding on subsequent parties.

Fee Clause Interpretation, Landlord/Tenant: Unlawful Detainer Action Did Not Arise Out Of Lease Fees Clause Given That Foreclosing Landlord Was Suing On A Statutory Basis For Obtaining Possession

Unique Facts Of The Case Governed The Outcome.

            The breadth or narrow nature of a contractual fees clause frequently can determine whether fee entitlement exists in a case.  De Witte Mortgage Investors Fund, LLC v. Carradine, Case No. B322747 (2d Dist., Div. 1 Dec. 19, 2023) (unpublished) vindicates that general principle.  Briefly stated, an entity acquired ownership of a property through foreclosure and then sought to evict certain defendants, with Carradine being added as a party to an unlawful detainer proceeding.  Carradine was successful because the new owner did not comply with municipal code requirements so as to be entitled to an eviction.  However, the lower court denied Carradine’s request for attorney’s fees as the prevailing party under a lease clause.

            The 2/1 DCA affirmed.  The appellate court agreed that the unlawful detainer proceeding was not premised on a lease with true prior tenants.  Losing party premised possession on a statute applicable to obtaining title by a foreclosure sale, and it lost based on failing to satisfy a municipal statute—nothing based on the lease.  The order denying fees was sustained on appeal.

Fee Clause Interpretation, Prevailing Party: Where Plaintiff Under An Ejectment Claim Obtained Possession Before Voluntarily Dismissing Complaint, Defendants Could Not Be The Prevailing Parties

Interpretation Of The Lease Language Led To That Result. 

            In A & N Industrial Properties, LLC v. Bart & Judy’s Bakery, Inc., Case No. B322730 (2d Dist., Div. 4 Nov. 13, 2023) (unpublished), plaintiff landlord sued a delinquent holdover tenant for breach of contract, common counts, breach of guaranty, and ejectment under a lease with a prevailing party fees clause.  After the complaint was filed, defendant tenant notified landlord that possession of the premises was being tendered back, which inspired landlord to dismiss its suit without prejudice.  Under Santisas (our Leading Case No. 6), no fees were recoverable on the contract claim.  However, tenant argued it was the prevailing party on the noncontractual ejectment claim, and the lower agreed by awarding it attorney’s fees.  The 2/4 DCA reversed as a matter of law because tenant did not prevail since landlord achieved its objective of obtaining possession from tenant.

Assignment, Fee Clause Interpretation: Escrow Company Incorrectly Denied Prevailing Party Attorney’s Fees In Real Estate Against Buyer’s Assignee, But No Fee Award Was Proper Against Assignor

Remand Was In Order For Fee Determination Against Buyer’s Assignee Vis-a-Viz The Escrow Company.

            In Sushi KJ Corp. v. Hana Escrow Co., Inc., Case No. B325421 (2d Dist., Div. 2 Aug. 24, 2023) (unpublished), a buyer—an assignee of the buyer’s predecessor in interest--sued an escrow company for negligent misrepresentations arising out of a seller’s alleged tax liability misrepresentation.  Buyer lost a demurrer to the escrow company, which was affirmed on appeal.  There was an indemnity fees clause, but it was broader such that it was the equivalent of a fees clause in the escrow instructions.  Escrow moved for $20,080 in attorney’s fees under the contract clause against buyer and buyer’s assignor (buyer’s predecessor).  The lower court denied the fee requests against both, reasoning that it was on a negligent misrepresentation which was not “on the contract” under Civil Code section 1717.

            The appellate court affirmed in part and reversed in part.  The reversal occurred as to the buyer (the assignee) because the fee clause was broad enough, on a contractual interpretation basis, to include recovery on a negligent misrepresentation claim (the escrow clause applied to “any and all … attorney fees incurred by the escrow holder in connection with … defending litigation ….”).  But the fee denial was affirmed against buyer’s assignor, given the fees clause only applied to a “party” and assignor was no longer that upon assigning rights to the assignee.  Independently, because assignor was no longer a party to the contract, any negligent misrepresentation claim was not “on the contract” under section 1717.  So, the matter was remanded to let escrow renew a fee motion against buyer, the assignee, in the real estate litigation upon which assignee did not prevail.

Deeds Of Trust, Fee Clause Interpretation, Indemnity: After Paying Off Loan Demand, Non-Prevailing Borrower On Economic Duress/Implied Covenant Claims Correctly Assessed With Contractual Fees Of $2,856,956.82 And Costs Of $38,184.54

Contractual Clauses, Including One In A Deed Of Trust, Were Fee Provisions.

            Modern litigation can be expensive.  It can even be more expensive where there is a fee-shifting basis in contractual documents.  Borrower learned that hard lesson in The Palace at Washington Square, LLC v. Mechanics Bank, Case Nos. A164195/A164799 (1^st Dist., Div. 3 Mar. 17, 2023) (unpublished).

            After honoring a loan payoff demand, borrower sued lender for economic duress and breach of the implied covenant of good faith and fair dealing.  Borrower lost those claims, with the referee later awarding lender $2,856,956.82 in attorney’s fees and $38,184.54 in costs under various promissory note, loan agreement, and deed of trust provisions.  Borrower’s appeal did not change the result.

            The trust deed provision entitled “Indemnification” did cover third-party exposure, but also had broad language showing that it also applied to actions between borrower and lender involving the loan documents and deed of trust.  That took it outside case law (see our category “Indemnity”) where only a third-party indemnity clause was involved.  (Baldwin Builders v. Coast Plastering Corp., 125 Cal.App.4^th 1339, 1344-1345 (2005); Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal.App.4^th 500, 508 (1997).) 

            Then, borrower argued that the deed of trust did not allow for a fees award because, based on opinions such as Hart v. Clear Recon. Corp., 27 Cal.App.5^th 322, 325, 327 (2018) and Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5^th 351, 356-358 (2018), the fees were to be added instead to the debt secured by the deed of trust.  The appellate panel disagreed, because there was no such language in the deed of trust, bolstered by a further provision indicated that borrower’s obligations survived repayment of the secured obligations and satisfaction of the deed of trust.

Equity, Fee Clause Interpretation: Prevailing Party Awarded Substantial Fees Despite A Bad Typo In The Contractual Fees Provision

Prevailing Party Did Obtain $538,961 In Fees After Reformation By Trial Judge, Affirmed On Appeal.

            We bloggers have seen this situation before.  A litigant, like the one in California Décor, Inc. v. Medrano, Case No. B313743 (2d Dist., Div. 2 Mar. 15, 2023) (unpublished), prevailed on its own case and defeated a cross-complaint.  So, that naturally took everyone to attorney’s fees recovery, given there was a contractual fees clause allowing fee shifting.  However, here is the language in the clause: “In the event of a dispute between Landlord and Tenant, any and all attorney fees shall be paid by [sic] the prevailing party.”  Losing party argued that prevailing party could not recover fees based on the “by” language, but the trial and appellate courts did not buy it after the lower court used equitable powers to reform the clause to change the language to “to”—fees shall be paid to the prevailing party.  After all, most contractual fees clauses do not penalize a prevailing party by having to pay the fees of an unsuccessful party.

THERE IS A LESSON HERE FOR CONTRACT DRAFTERS—PROOF YOUR DOCUMENTS TO MAKE SURE THEY MAKE SENSE.

Fee Clause Interpretation: Plaintiff Purchaser Obtaining Specific Performance In A Real Estate Transaction Properly Awarded Fees Under A Contractual Fees Provision Against Losing Seller

Closing Costs Provision Was Distinct From Litigation Prevailing Party Provision.

            The next case, Classic Auto Repair, Inc. v. Ida, Case No. B308002 (2d Dist., Div. 8 Mar. 8, 2023) (unpublished) is a real estate primer on contractual interpretation on allocation of attorney’s fees exposure with respect to litigation and closing costs.  The plaintiff purchaser won attorney’s fees in a specific performance action under a contractual fees clause, with the losing party arguing that a different “closing costs” provision prevented a fee award because both parties agreed to bear their own fees as far as closing.

            The appellate court did not buy appellant’s argument.  The paragraph relied on by appellant only applied to closing fees, while a different paragraph did allow for recovery of fees incurred in court proceedings.  In reaching this conclusion, because co-contributor Mike is a real estate transactional attorney among other practice areas and always searches for appellate insights into transactional documents, the appellate panel observed that headings and titles can provide insight into the parties’ intent—with the operative provision entitled “Attorneys’ Fees” and the inapt provision entitled “Closing Costs.”

Fee Clause Interpretation, Homeowner Associations, Reasonableness Of Fees: $132,070.40 Fee Award To Defendant Homeowners Was Affirmed On Appeal As Against Plaintiff Homeowners In Tree Obstruction Dispute

Plaintiffs Pled CC&Rs As A Basis For Nuisance Claim, So There Was Fee Entitlement Under Civil Code Section 1717, CCP Section 1021, And Civil Code Section 5975, With The Fee Award Being Reasonable After A Minor Haircut By The Trial Judge.

            Plaintiff homeowners sued neighboring homeowners in a tree obstruction action based on nuisance and defendants’ alleged violation of certain specified CC&Rs.  After everyone attended an unsuccessful mediation, the matter proceeded to trial and was decided in defendants’ favor.  The trial judge later awarded defendants, as against plaintiffs, attorney’s fees of $132,070.40 (reduced from the $143,381.76 “ask”). 

            Plaintiffs’ appeal in Mascaro v. Brown, Case No. B319419 (2d Dist., Div. 6 Jan. 19, 2023) (unpublished) was unsuccessful.  Although challenging fee entitlement, plaintiffs’ nuisance action was also based on CC&Rs, such that fee entitlement existed under Civil Code section 1717 (based on the CC&Rs fees provision), CCP section 1021 (same; broad CC&Rs fee provision), and Civil Code section 5975 (Davis-Stirling Act fee-shifting provision applicable where governing HOA documents are being enforced).  The fees for mediation work were allowable under section 5975(c) regardless of the CC&Rs’ specific language.  With respect to the amount of the fees awarded, the trial judge did not abuse his discretion given that there was competent fee substantiation in the form of invoices and the lower court did reduce some duplicative, unnecessary work.  Finally, the appellate court agreed that the defendants were also entitled to reasonable appellate fees for their win in the appeal.

Fee Clause Interpretation: “Arising Out Of” Contractual Fee Clause Language Was Broad Enough To Allow A Prevailing Party On A Related Statutory Claim To Obtain Fee Recovery

Trial Court Denied Fee Motion, So It Was Remanded For A Rehearing To Fix Reasonable Fees.

            “Arising out of” language in a contractual fees clause can indeed give rise to fee exposure even where a prevailing party succeeded on a related statutory claim rather than a contract qua contract claim.  Varney Entertainment Group, Inc. v. Avon Plastics, Inc., Case No. G060870 (4^th Dist., Div. 3 Jan. 17, 2023) (unpublished), authored by Justice Goethals, came to that conclusion in reversing a fee denial and remanding for a rehearing to fix reasonable fees.

            There, the contract clause stated: “In the event of any arbitration or litigation, including breach, enforcement or interpretation, arising out of this Agreement, the prevailing party of such litigation shall be entitled to recover reasonable attorneys’ fees, costs, and expenses, including pre-litigation and appellate attorneys’ fees and costs.”  The issue on appeal was whether Avon’s previous unsuccessful appeal arose out of the endorsement agreement by which Avon used Mr. Varney’s name and likeness without his permission.  In the prior appeal, Avon unsuccessfully appealed a trial court’s denial to it of attorney’s fees under Civil Code section 3344’s likeness misappropriate statute.  However, after doing a survey of cases recognizing that “arising out of” contractual language is broad in scope, the panel concluded that the prior appeal did arise out of the Avon-Varney endorsement contract such that fees should not have been denied outright.

Fee Clause Interpretation, Section 1717: Second District Reverses Fee Awards Totaling $680,104.12 As A Matter Of Law

One Award Reversed Because It Only Covered An Arbitration/Ensuing Litigation Even Though No Arbitration Occurred, And Other Award Overturned Because It Was Unclear That Fiduciary Breach Claim Was Not Barred By Santisas.

            San Jose Nihonmachi, LLC v. Miraido Corp., Case No. B323093 (2d Dist., Div. 1 Jan. 4, 2023) (unpublished) shows how the absence of fee entitlement can lead to a reversal of substantial fee awards: in this case fee awards totaling $680,104.12, awards in favor of two different defendant groups.

            The first reversed award of $287,380.75 evaporated based on the narrowness of the fees clause, which covered only prevailing parties in “such arbitration and ensuing legal action.”  Given the parties bypassed litigation and only used the court process, the absence of arbitration occurring was dispositive.  (Kalai v. Gray, 109 Cal.App.4^th 768, 777 (2003).)

            The second overturned award of $392,723.37 involved a voluntary dismissal without prejudice by plaintiff/appellant of an action, invoking a fees clause that was not limited to just arbitration/post-arbitration activities.  Plaintiff did dismiss certain contract claims before they were adjudicated, which did not give rise to fee exposure under Santisas v. Goodin, 17 Cal.4^th 599, 622 (1998).)  The issue on appeal concerned whether a dismissed breach of fiduciary duty claims was based on contract or in tort (because Santisas will not bar fee exposure where a tort is within the ambit of a broadly-worded fees clause).  The appellate court determined that it was “unclear” whether the fiduciary duty claim was not based on contract rather than tort, with any uncertainty meaning that it was “on the contract” and barred by Santisas.  (Kangarlou v. Progressive Title Ins. Co., Inc., 128 Cal.App.4^th 1174, 1178-1179 (2005).)  This last holding provides some discovery tips for the defense to smoke out whether plaintiff’s claims are based in contract or just tort, or both. 

Arbitration, Fee Clause Interpretation: $1,648,620.17 Contractual Fee Award By An Arbitration Award Against FeeDx Affirmed In A Ninth Circuit Opinion

Arbitration Tribunal’s Fee Award Was Not Completely Irrational In Nature Under The FAA.

            In HayDay Farms, Inc. v. FeeDx Holdings, Inc., Case Nos. 21-55650/21-55698 (9^th Cir. Dec. 19, 2022) (published), two parties (HayDay and FeeDx) entered into an exclusive distribution agreement with each other through Nippon, providing for arbitration and making Nippon liable for HayDay’s breaches.  Later, the three parties entered into a settlement agreement, which modified but did not replace the exclusive distribution agreement.  The settlement did not resolve the disputes, which went to arbitration resulting in substantial arbitration awards in favor of HayDay and Nippon as against FeeDx.  The arbitration award was over $26.2 million, augmented by a contractual fees and costs award of $1,648,620.17.  The district court vacated about $7 million of the merits award, but it left the remaining portion and fees/costs awards intact.

            The parties appealed.  This was a good move by HayDay and Nippon, because the Ninth Circuit reinstated the $7 million previously vacated portion of the award.  With respect to FeeDx’s challenges, they did not win on appeal.  The main problem is that the standard for vacatur under the FAA, 9 U.S.C. § 10(a)(4), is exceedingly high, meaning that the arbitration tribunal manifestly disregarded the law or the award was completely irrational.

            The main fee clause in the settlement agreement provided: “If FeeDx or Hayday brings legal action to enforce its rights under this Settlement Agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorneys’ fees) incurred in connection with action and any appeal.” FeeDx argued that Nippon could not be awarded fees because it was not a party to the agreement.  The Court of Appeals disagreed, given that the “prevailing party” language was broad and given that Nippon was potentially liable for HayDay’s breaches—the tribunal’s interpretation of this clause as allowing fees to Nippon was not completely irrational under the circumstances. 

Fee Clause Interpretation, Lodestar: $547,465.10 Fee Award And $23,589.25 Costs Award To Prevailing Defendant Sellers Affirmed On Appeal

Liability Cap Did Not Apply To Fees, Out-Of-County Attorneys Showed Good Cause To Represent Defendants In Tuolumne County, And Trial Judge Reduced Fee Request By 20%.

            In Apartment Rental Assistance II, Inc. v. 80 Oak Hills, L.P., Case No. F083238 (5^th Dist. Dec. 13, 2022) (unpublished), buyer plaintiffs lost a summary judgment to seller defendants where three purchase agreements had separate fee clauses.  Defendants moved for fees of $677,465.10 and for $23,589.25 in costs, with the lower court awarding them $547,465.10 in fees and the entire “ask” in costs.  Plaintiffs appealed.

            They lost.  Their main argument on entitlement was that there was a “fee cap” in one of the agreements, but a close look at it showed that it only applied to liability determinations—reinforced by no similar cap in the actual fee provisions.  With respect to the amount of lodestar fees awarded, the Fifth District found no abuse of discretion.  Not only did the lower court reduce the fees request by about 20% for excessive associate compensation and assembly of binders, but the out-of-town lead counsel representing defendants showed there was good reason for his firm to be litigating in Tuolumne County because he had years of experience with the clients on real estate matters such that they were justified in not using local counsel without his “experience curve.”

Fee Clause Interpretation, Mediation: Fee Clause Allowing Only Prevailing Party Attorney’s Fees For Mediation Or Arbitration Proceedings Enforced As Written

Fees Clause Did Not Allow For Recovery Of Fees In Litigation.

            In Glass v. Whills, LLC, Case Nos. B304806 et al. (2d Dist., Div. 4 Aug. 10, 2022) (unpublished), both the trial and appellate court were dealing with a civil litigant’s claim for prevailing party attorney’s fees recovery under a fees clause providing that any disputes must be submitted first to mediation and, if unresolved, to binding arbitration, and that “[t]he non-prevailing party in any such mediation or arbitration, as determined by the mediator or arbitrator, shall pay the prevailing party’s court cost and attorneys’ fees.”  The lower court denied the litigant’s motion for fees, finding that the mediations in which the parties participated failed to result in a prevailing party resolution or determination, and the parties did not thereafter pursue arbitration.

            The appellate court affirmed that conclusion.  It found that the clause was unambiguous; the binding mediator had the ability to determine the prevailing party such that the absence of language indicating a court could award prevailing party fees sealed the deal.

Deeds Of Trust, Fee Clause Interpretation: Borrower Losing Wrongful Foreclosure Action Was Properly Assessed With Contractual Attorney’s Fees Under the Note To The Tune Of $878,067.11

“Security First”/Antideficiency Arguments Did Not Prevail Because Contractual Fee Exposure For Wrongful Foreclosure Claims Were Independent Contractual Obligations.

            This next appeal is a somewhat related appeal to our independent July 26, 2022 post regarding sanctions awarded against plaintiff borrower’s attorney for violation of trial preparation rules.  In Shiheiber v. JPMorgan Chase Bank, N.A., Case No. A160189 (1^st Dist., Div. 2 July 28, 2022) (unpublished), plaintiff lost wrongful foreclosure claims against lender (the merits ruling affirmed in an earlier appeal), with the trial judge assessing $878,067.11 in contractual fees against borrower and in favor of lender based on a promissory note fee clause.

            That fee award was affirmed on appeal, with borrower not challenging the amount of the award, but only challenging fee entitlement.  Because the wrongful foreclosure loss triggered contractual fee exposure under separate loan documents, the fee award was legally warranted.  (See Passanisi v. Merit-McBride Realtors, Inc., 190 Cal.App.3d 1496, 1507-1509 (1987); Flynn v. Page, 218 Cal.App.3d 342, 349 (1990); Jones v. Union Bank of California, 127 Cal.App.4^th 542, 551 (2005).)  These cases establish “that a foreclosure sale does not extinguish or preclude enforcement of a prevailing party attorney fee clause in the loan instruments.  Such a provision represents a separate contractual covenant, distinct from the covenant to repay the loan on specified terms, that is simply intended to alter the traditional American rule that each side bear their own attorney fees in the event of litigation between them.”  (Slip Opn., p. 9.)  The promissory note clause was broad enough to encompass tort wrongful foreclosure claims.  (Yoon v. Cam IX Trust, 60 Cal.App.5^th 388, 391, 393 (2021).)  So, the fee award was upheld.

Fee Clause Interpretation: Denial Of Attorney’s Fees Was Reversed Because Debt Extension Agreement Was Inextricably Interrelated With Loan Agreement Containing A Fees Clause

Looking Only At The Debt Extension Agreement Was Too Myopic In Nature.

            In Cable v. O’Neill, Case No. D079096 (4^th Dist., Div. 1 July 7, 2022) (unpublished), debtor defaulted under a loan agreement containing a contractual fees clause.  Creditor and debtor then entered into a debt extension agreement not having a fees clause, but obviously referencing the original loan agreement and inextricably interrelated to that first agreement.  The lower court recognized plaintiff creditor was a prevailing party after entering judgment for the unpaid loan amount, but it denied fees because there was no fees clause in the subsequent extension agreement.  The 4/1 DCA reversed, finding that the two agreements were inextricably interrelated such that fees should be awarded on remand to plaintiff creditor.

Allocation, Fee Clause Interpretation: Plaintiff Owner Losing A Variety Of Intertwined Claims Arising From A Home Improvement Contract Was Properly Assessed With Contractual Party Fees As Against The Home Improvement Installer

Installer Was Awarded $1,223 In Costs And $95,531.68 In Attorney’s Fees.

            Plaintiff owner sued a home installer on various contractual, tort, and statutory theories for a job of under $4,000, with there being a home improvement contract with a fees clause covering performance issues under the contract.  Owner lost across the board, with the lower court awarding installer $1,223 in costs and $95,531.68 in attorney’s fees.  The 2/6 DCA affirmed in Plyley v. Renovating Specialist, Inc., Case No. B309457 (2d Dist., Div. 6 May 31, 2022) (unpublished).  The contractual fees clause was broad enough to encompass contractual and interrelated tort/statutory claims, such that no apportionment was required.  The appellate panel also indicated that installer was entitled to appellate fees and costs as the victor, remanding to the trial court with directions to do so upon a properly filed motion. 

Fee Clause Interpretation: $196,231.50 Attorney Fee Award To Prevailing Party Seller Of Real Property Affirmed On Appeal Despite Seller’s Failure To Attempt Mediation Pursuant To Form Purchase Agreement’s Fee Provision

Fee Provision Without Mediation Requirement In Later Jointly Drafted Cooperation Agreement Governed.

            In Emery v. Marchick, Case No. B307999 (2d Dist., Div. 1 May 23, 2022) (unpublished), defendant used a California Association of Realtors’ Residential Purchase Agreement form in her offer to purchase a residential property from plaintiff.  The form purchase agreement contained an attorney fee provision requiring that before filing a lawsuit, the parties attempt to resolve through mediation disputes arising out of the agreement or resulting transactions. Pursuant to an accepted requirement in plaintiff’s counter offer, the parties entered into a jointly drafted Cooperation Agreement regarding a lot line adjustment.  The Cooperation Agreement also contained an attorney fee provision, but it did not require mediation of disputes. Well, a dispute arose and plaintiff filed a complaint claiming defendant breached the Cooperation Agreement – with judgment entered in plaintiff’s favor in the amount of $285,000 plus another $196,231.50, out of the $204,386.50 requested, in prevailing party attorney fees. 

            On appeal, defendant argued that plaintiff was not entitled to an award of attorney fees because she failed to attempt to mediate before filing her complaint.  The 2/1 DCA disagreed with defendant’s contention and affirmed.  For starters, the attorney fee provision in the Cooperation Agreement governed because the parties entered into it after the form purchase agreement and the fee provision the parties included in the Cooperation Agreement superseded.  (Civ. Code, § 1585; Frangipani v. Boecker, 64 Cal.App.4th 860, 863 (1998).)  Additionally, pursuant to Civ. Code, § 1651, where there is inconsistency in terms, those negotiated by the parties prevail over form terms which are not separately negotiated.  Finally, pursuant to Civ. Code, § 1641, courts interpret contracts to give effect to every part and avoid interpretations that render part of a contract as surplusage. (Rice v. Downs, 248 Cal.App.4th 175, 186 (2016).)  Interpreting that the form purchase agreement’s fee provision controlled would reduce the latter Cooperation Agreement’s fee provision to surplusage – something the appellate panel declined to do.

Fee Clause Interpretation, Section 1717: $157,191 Fee And $7,219.60 Costs Award Under A Contractual Fees Clause Affirmed On Appeal

Defendants’ Nonsignatory Status Did Not Change The Result Because Plaintiffs Would Have Been Entitled To Fees Had They Won.

            Based on a broad contractual fees clause in an agreement governing a dispute over the use of large electric sign in the City of Long Beach to advertise car dealerships in the area, defendants obtained a summary judgment against plaintiffs.  The lower court then awarded prevailing party fees and costs to defendants to the tune of $157,191 in fees and $7,219.60 in costs.  The appellate court rejected plaintiffs’ challenges to the fee award in H.T.L. Properties, LLC v. Speck, Case No. B302436 (2d Dist., Div. 2 Apr. 26, 2022) (unpublished).  The principal argument on appeal was that defendants were nonsignatories to the agreement, so no fees were warranted.  Appellants, you are mistaken, said the appellate panel, pointing out that plaintiffs would have been entitled to fees against the nonsignatories such that the reciprocal entitlement ran in favor of the nonsignatories under Civil Code section 1717—citing Brown Bark III, L.P. v. Haver, 219 Cal.App.4^th 809, 819 (2013). 

Estoppel, Fee Clause Interpretation: A Little Over $320,000 Fee Award Gets Reversed As A Matter Of Law Because The Clause Did Not Cover The Scope of the Adjudicated Dispute

Interpretation Of Fee Clause Wording Is A Fertile De Novo Review Issue For Losing Litigants Facing Fee Exposure.

            On appeal, one of the best issues is whether there is fee entitlement. In many disputes, this means does the fee clause cover the dispute which was adjudicated before a court or jury?  If the answer is no, even though a trial judge decides otherwise, an appellate court can reverse the fee award as a matter of law.

            That is what happened in BFCAP Investments, LLC v. Lifehouse Parkview Properties, LLC, Case No. B307388 (2d Dist., Div. 4 Apr. 21, 2022) (unpublished). There, defendant sellers won a summary judgment against plaintiff buyer, with the trial judge awarding a full request of a little over $320,000 in attorney’s fees under a contractual fees clause. (Even then, the trial judge was concerned that the defendants failed to quote the full fees clause so that a proper consideration of the fee award could be made, with the defense apologizing at some stage for this omission.) Nonetheless, the appellate court reversed, deciding that the fees clause only related to disputes over Acquired Assets rather than property post-default issues.  Even though plaintiff had prayed for fees, the reviewing court did not view this as an estoppel because defendants still had to show their own entitlement to fees.

Fee Clause Interpretation, Indemnity: Landlord Prevailing In Breach Of Contract Action Watches $496,757.31 Fee Award Disappear On Appeal

The Parties’ Leases Did Not Include Attorney Fees Provisions, And The Trial Court Erred In Finding That The Leases’ Third Party Indemnity Provisions Permitted Recovery Fees In A Direct Breach Of Contract Action

            In Blackburn v. County of San Diego, Case No. D076904 (4^th Dist., Div. 1 February 24, 2022) (unpublished), the trial court awarded $496,757.31 in attorneys’ fees to the prevailing landlord plaintiff in a breach of contract action against the County of San Diego – finding the language of the indemnity provisions in the parties’ leases to be so broadly worded that they allowed plaintiff to seek direct indemnity from tenant in the form of attorney fees.

            Citing its previous decision in Alki Partners, LP v. DB Fund Services, LLC, 4 Cal.App.5th 574 (2016) [discussed in our October 24, 2016 post], the 4/1 DCA reversed – finding nothing in the indemnity provisions to suggest that the provisions were not limited to third party claims – nor anything that specifically addressed the issue of, nor expressly permitted, recovery of attorney fees in an action on the contract between the parties.  “To find a right to attorney fees in a direct action under an ordinary indemnity provision, as here, would invest every agreement containing a standard third party indemnity clause with a prevailing party attorney fee clause. This is particularly inappropriate because section 1717, subdivision (a), which governs the award of contractual attorney fees, applies only when the contract ‘specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party . . . .’ The indemnity clause here does not ‘specifically’ refer either to actions to enforce the contract or to the prevailing party. Rather, it is a third party indemnity clause. The court erred in construing it otherwise.” (Alki Partners, supra, 4 Cal.App.5th at p. 606.)